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JOHN CADOGAN v. COMMONWEALTH PENNSYLVANIA (05/19/88)

decided: May 19, 1988.

JOHN CADOGAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole, in the case of John Cadogan, Parole No. 5093J.

COUNSEL

Robert B. Stewart, III, Chief Public Defender of Huntingdon County, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 116 Pa. Commw. Page 250]

John B. Cadogan (Petitioner) appeals from a decision of the Board of Probation and Parole (Board) dismissing his application for administrative relief as untimely. We affirm.

While Petitioner was on parole, he was arrested and charged with aggravated assault. Petitioner pled guilty to the aggravated assault charge and a parole revocation hearing was held on August 8, 1985. On December 4, 1985, the Board issued an order recommitting Petitioner as a technical and convicted parole violator to serve the unexpired term of his sentence. On December 6, 1985, a copy of the Board's order was mailed to Petitioner at the State Correctional Institution at Graterford. On January 30, 1986, the Board modified its order by deleting references to one of the technical parole violations. The modified decision was mailed to Petitioner on February 13, 1986. The same day the Board mailed its modified decision, the Board received from Petitioner

[ 116 Pa. Commw. Page 251]

    an application for administrative relief from the Board's December 4, 1985 decision. The application for administrative relief requested relief based on the Pennsylvania Supreme Court's Rivenbark decision.*fn1 Since the Board had already modified its recommitment order, the Board took no further action on this application for administrative relief.

On August 6, 1986, Petitioner filed an application for administrative relief from the Board's January 30, 1986 order. This application for administrative relief was dismissed by the Board as untimely on August 11, 1986. On March 13, 1987, the Board modified its decision of January 30, 1986 by deleting all reference to technical parole violations. On March 27, 1987, a copy of this modification order was mailed to Petitioner.

On October 26, 1987, Petitioner filed with the Board an application for administrative relief from the Board's December 4, 1985 recommitment order.*fn2 The Board dismissed the application for administrative relief as untimely filed. This appeal followed.

On appeal to this court, Petitioner contends that the Board should not have dismissed his October 26, 1987 application for administrative relief as untimely because (1) there was no proof as to when the Board's decision was received by Petitioner, and (2) Petitioner ...


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